State v. Uglem

• Decision Date: 21 April 1966
• Docket Number: No. 37512,37512
• Citation: 68 Wn.2d 428,413 P.2d 643
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Allen Dawn UGLEM Appellant.

Page 428

68 Wn.2d 428

413 P.2d 643

The STATE of Washington, Respondent, v.Allen Dawn UGLEMAppellant.

No. 37512.

Supreme Court of Washington, En Banc.

April 21, 1966.

Chavelle, Chavelle & Greenway, Cornelius C. Chavelle, Seattle, for appellant.

Charles O. Carroll, Pros.Atty., David W. Soukup, Deputy Pros.Atty., Seattle, for respondent.

FINLEY, Judge.

The defendant was charged, tried, and convicted of the crime of negligent homicide--the weapon was a high-powered sportscar.The defendant is appealing his conviction by a jury.He contends that the evidence was insufficient to prove the crucial requirements of the crime.Furthermore, he contends that the case should never have been sent to the jury.

At this point, the following brief re sume of the facts will be helpful.The defendant was the driver of a 1962 Corvette sportscar.He was driving east on 252nd in South King County shortly after 1:00 a.m., early Sunday morning, June 23, 1963.Two Hundred Fifty-second Street intersects with the 'Old Highway 99' which runs between Seattle and Tacoma.

Just before the accident, a Mr. Melvin H. Jangard was driving his 1962 Corvair on the 'Old Highway 99,' with Nancy A. Warren as a passenger in the car.They were headed south in the curb lane, returning to Tacoma after an evening in Seattle.

The defendant entered the intersection at a high rate of speed and hit the Jangard vehicle broadside.The defendant's car came to rest 31 feet beyond the point of impact, and the Jangard vehicle was propelled all the way across the four-lane highway, some 75 feet to the opposite shoulder, where it came to rest on its side.When the state trooper arrived at the scene, Mr. Jangard was still in the car and was seriously injured; Miss Warren was lying, dead, on top of him.The defendant was in a coma for five days, and his two passengers were also seriously injured.

The trial judge concluded that the state had presented sufficient evidence to allow the jury to decide whether the defendant had violated RCW 46.56.040.He instructed the jury as follows:

To convict the defendant, Allen Dawn Uglem, of NEGLIGENT HOMICIDE, as charged in the Information herein, the State must prove to you beyond a reasonable doubt:

(1) That on or about the 23rd day of June, 1963, the defendant did operate a motor vehicle upon a public highway in King County, Washington;

(2) That the defendant operated said motor vehicle either

(a) in a reckless manner,

OR

(b) with disregard for the safety of others,

OR

(c) while under the influence of or affected by the use of intoxicating liquor; and

(3) That as a proximate result of said operation of an automobile, Nancy A. Warren died within one year.

We note that the defendant has not argued that the evidence was insufficient to allow the jury to determine whether the defendant drove his car 'with disregard for the safety of others.'However, the defendant argues that there was insufficient evidence on the issues of reckless driving and driving while under the influence of liquor for the jury to consider those facets or elements of the instructions or charge given by the trial judge to the jury.

First, the defendant contends that the evidence was insufficient to show that he was under the influence of liquor at the time of the accident.The defendant points out that all the witnesses called by the state testified that they thought the defendant was sober at the time of the accident.Also, the defendant stresses the fact that the state trooper who was called to the accident did not testify that he smelled liquor on the defendant.

The state strongly contests the contention of the defendant that the evidence was insufficient to support the charge that the defendant was under the influence of liquor at the time of the collision.The state attempted to use a blood test made possible by a sample of blood taken from the defendant when he was admitted to the hospital.The results of the blood test were excluded by the trial judge.This was a significant victory for the defendant.Consequently, on this appeal he has made no issue about this aspect of the case.

The state contends that even without the blood test there was more than sufficient evidence that the defendant was under the influence of alcohol at the time of the accident.The state utilized the statement of the defendant and the testimony of his friends to reconstruct the activities of the defendant before the accident.In a statement given to Trooper Hall the defendant said that shortly after Noon on June 22, 1963, he had gone to the Fireside Inn, a tavern located on the 'Old Tacoma Highway.'He had a beer there and left.He then went to Tacoma and visited the White Spot Tavern.There, he may have had two beers before he left.He had some recollection of returning to the Fireside Inn, but he did not remember anything after that until he awoke in the hospital.He did not know he had been involved in an accident until his father told him about it in the hospital.

James Whitcomb, a friend of the defendant, testified that he saw the defendant at the Fireside Inn at about 2:30 p.m.; that defendant drank one beer and left; that he saw him again at the Fireside Inn at about 6:00 p.m.; that defendant came in and played a game of shuffleboard, and 'during this he drank one and maybe two beers.'Again, the defendant left the tavern, and again he later returned to the tavern at 11:00 or 11:30 p.m.When the tavern was about to be closed shortly before midnight, the defendant left for an after-hours party at a private home with Whitcomb, taking half a case of beer with him.Whitcomb testified that they arrived at the party at about twenty minutes before 1:00 a.m. Whitcomb stated that he, the defendant, and one Don Cella(later a passenger in the defendant's car) sat and had one beer.They left the party shortly after 1:00 a.m.The collision occurred immediately thereafter.The state trooper found five full bottles of beer, several broken bottles, and one empty bottle in the defendant's car after the collision.

On the basis of the foregoing, we are convinced that the jury properly could have believed and concluded that the defendant had consumed at least seven beers in the twelve hours he spent in and out of taverns immediately preceding the accident.The jury could have made that tally simply by counting the number of beers the defendant admitted he drank, and then adding the number of beers his friends testified that he consumed.In fact, the jury might well have regarded the estimate of seven beers as conservative when they considered the facts that the testimony about the defendant's drinking came from his friends who themselves had been drinking since early in the day.We also note that the defendant offered no testimony to show that he was elsewhere than at a tavern during the twelve hours before the collision; nor did he offer any proof that he had consumed any food during that period.

The defendant, as stated above, argues that the evidence was not sufficient to send the issue of intoxication to the jury.He relies on a number of cases which he contends support his view.Madill v. Los Angeles Seattle Motor Express Inc., 64 Wash.2d 548, 392 P.2d 821(1964);White v. Peters, 52 Wash.2d 824, 329 P.2d 471(1958);Wood v. Myers, 48 Wash.2d 746, 296 P.2d 525(1956);Schalow v. Oakley, 18 Wash.2d 347, 139 P.2d 296(1943).

Before discussing the above cases, we shall risk elaborating the obvious by mentioning that each case largely turns or depends on its own facts as to any claim that the evidence was not sufficient for the case to have gone to the jury.The legal rules are clearly stated in State v. Reynolds, 51 Wash.2d 830, 833, 322 P.2d 356, 358(1958):

'A challenge to the sufficiency of the evidence or a motion having that effect admits the truth of the evidence of the party against whom the challenge or motion is made and all inferences that reasonably can be drawn from such evidence, and requires that the evidence be interpreted most strongly against the challenger or movantparty and in the light most favorable to the opposing party.'(Quoting fromState v. Lutes, 38 Wash.2d 475, 481, 230 P.2d 786(1951).)

State v. Reynolds also held:

Whether the evidence is sufficient to submit the issue to the jury is a question of law for the court, and no element of discretion is involved.* * * Where there is any evidence, however slight, and the evidence is conflicting or is such that reasonable minds may draw different conclusions therefrom, the question is for the jury.(p. 834, 322 P.2d p. 358.)

Turning to the cases cited by the defendant, we find that all are distinguishable on their facts.In Madill v. Los Angeles Seattle Motor Express, Inc., supra, it was held to be error to instruct that the plaintiff could be guilty of contributory negligence because she rode in a car where the driver was under the influence of liquor.The court held there was insufficient evidence on which to allow the jury to consider the intoxication of the driver because under the evidence in the case it would be 'mere speculation' to say that the driver had more than one bottle of beer.In the instant case there is considerably more evidence of drinking than a 'one beer' situation.

In White v. Peters, supra, the driver had one cocktail with his lunch at noon.Then he went 'window shopping' with his wife and returned to the lounge of the lodge hall, where he slept until about 4:00 p.m.They then had a large banquet-style dinner and one whisky highball.The accident occurred two and one-half hours later.The court held it was error to submit the issue of contributory negligence--i.e., driving under the influence of liquor--to the jury under these facts.In the case at bar there is no evidence that the drinking was limited to two drinks or that the defendant ate while or after drinking.

In Wood v. Myers, supra, the driver had two beers after lunch, one beer about 11:00 p.m., and ...